A Stern Look at the Property Status of Top-Level Domains

Top-level domains (TLDs) are the right-most portion of a web address. For example, in “web.address.com,” “.com” is the TLD. TLDs are divided into generic TLDs (gTLDs), such as “.com” and “.net,” and country-code TLDs (ccTLDs), such as “.us,” “.uk,” and “.ca.” Broadly speaking, gTLDs are administered by private entities through agreements with the Internet Corporation for Assigned Names and Numbers (ICANN), a USbased nonprofit corporation. ccTLDs, in contrast, are administered either by the government associated with a particular ccTLD or by a designated private entity.

Despite the importance of the domain name system (DNS) to the Internet, the legal status of TLDs is uncertain. Few cases have addressed the related legal issues; courts have not arrived at a consensus regarding either the property status of TLDs or, if TLDs are property, who actually owns a given TLD. Some TLDs are eligible for trademark protection, while others are not. Some TLDs can be alienated by their administrators, while others cannot. Some TLDs can restrict registration of subdomains, while others cannot. With regard to the DNS more generally, some domains may be seized to satisfy claims or debts, while others may not.

This Comment attempts to unify case law, statutory law, and extralegal norms into an overarching theory explaining the property status of TLDs. Because transactions relating to TLDs take place both inside and outside of formal legal frameworks, an assessment of TLDs’ property status must account for both legal decisions relating to the DNS and extralegal events that illuminate a community consensus on which property rights should be recognized in TLDs.